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Hicks v. Commonwealth

Court of Appeals of Virginia

December 3, 2019

WILLIE HICKS, JR.
v.
COMMONWEALTH OF VIRGINIA

          FROM THE CIRCUIT COURT OF MECKLENBURG COUNTY Leslie M. Osborn, Judge

          Steven D. Benjamin (Betty Layne DesPortes; Benjamin & DesPortes, P.C., on briefs), for appellant. [1]

          Rosemary V. Bourne, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

          Present: Chief Judge Decker, Judges Petty and Huff Argued at Richmond, Virginia

          OPINION

          MARLA GRAFF DECKER CHIEF JUDGE

         Willie Hicks, Jr., appeals his convictions for one count each of rape, aggravated sexual battery, and indecent liberties, in violation of Code §§ 18.2-61, -67.3, and -370. On appeal, he asserts that in light of the fact that he stood charged with five counts of rape, the trial court erred by failing to instruct the jury in a manner that ensured their unanimity regarding which one of the multiple acts described by the complaining witness had been proved beyond a reasonable doubt. He also suggests that the court erred by excluding two different types of impeachment evidence. We hold that the appellant did not preserve his challenge to the unanimity of the jury for appeal. We further hold that he waived one of his evidentiary claims. As to his other evidentiary claim, we conclude that the evidence supports the trial court's finding that he did not establish an adequate foundation for the admissibility of the excluded testimony. Consequently, we affirm the convictions.

         I. BACKGROUND[2]

         The appellant was twenty years old at the time of the offenses. The victim, Q.A., was his twelve-year-old female cousin. All offenses occurred during an eleven-day period of time in which the appellant and the victim were both living at a relative's home.

         The appellant was tried for taking indecent liberties with a child, aggravated sexual battery, and five counts of rape. During the trial, the court refused two categories of evidence proffered by the appellant. It excluded evidence that the victim had genital warts and that she had previously made false accusations of sexual abuse. The court also refused the appellant's request to label each of the rapes in a different fashion, such as by numbering them.

         Following trial, the jury convicted the appellant of one count each of indecent liberties, aggravated sexual battery, and rape. It acquitted him of the other counts of rape. He was sentenced to a mandatory term of life in prison for the rape, as well as to one year for aggravated sexual battery and twelve months for indecent liberties.

         II. ANALYSIS

         The appellant challenges the trial court's use of identical jury instructions for the five counts of rape on the ground that they failed to require that the jury was unanimous regarding the rape of which it found him guilty. He also contests the court's exclusion of evidence concerning a communicable virus and prior false accusations of sexual misconduct.

         A. Jury Instructions and Unanimity of Rape Verdict

         The appellant argues that the instructions given to the jury permitted it to find him guilty of a single count of rape without requiring that the jurors unanimously agree upon which particular incident supported that conviction.

         1. Relevant Trial Events

         The appellant was initially charged with eight counts of rape, each of which covered a different date or range of dates between June 12 and June 23, 2017.

         At trial, the victim testified that on or about June 12, the appellant climbed into her bed and put his penis "inside" her vagina. When the prosecutor asked about "the next time," the victim replied that she was once again "in [her] room" and that "[t]he same thing" happened. In response to a later inquiry regarding "how many times" the appellant penetrated her between June 12 and 23, the victim responded, "It was . . . more than once, but I don't know exactly how many," and she indicated that each incident occurred "on a different day." The victim subsequently clarified that the rapes occurred approximately "every other day" and that the appellant raped her a total of five rather than eight times. She then gave slightly more detailed testimony about the "last time" he raped her.

         Following the crimes, the victim reported to police that her clothes hamper contained "three pairs of panties that probably ha[d] semen . . . on them." The police collected three pairs of her underwear as evidence. The appellant's DNA was found in seminal fluid located along with the victim's blood in the "interior crotch area" of one of those pairs of underwear.

         The appellant testified at trial and denied the allegations. He admitted, based on the DNA evidence, that the sperm found in the victim's underwear was his. Nevertheless, he denied having sexual intercourse with her, claiming instead that he merely put his clothing in the same hamper.[3]

         On the prosecutor's motion, the trial court dismissed three of the eight rape indictments because the victim's testimony supported only five rape charges. Also on the prosecutor's motion, the court amended the five rape indictments so that they all contained identical language, each charging the appellant with raping the victim on or about "June 12 through June 23."

         Later, during discussion among the parties and the court regarding the jury instructions, the appellant noted the need "to be able to distinguish [among the rape counts] for purposes of appeal." He asserted that "if the jury finds [the appellant] guilty on this [rape] instruction and innocent on this [rape] instruction[, ] the question for the Court of Appeals is, is there sufficient evidence to sustain its burden beyond a reasonable doubt on this rape." He consequently argued that the court needed to devise a "way to distinguish each of the charges in the instructions [in order to] keep track on the record what evidence applies to what . . . for purposes of appeal."

         The judge inquired, "How am I going to make [the instructions] different?" The appellant replied that he did not know but said that "if [the judge did not] do it[, ] the jury could be in the position of going back there and maybe ten of them think rape one happened and two of them think rape three happened." The appellant asked about "how [he would] preserve [an objection]" under those circumstances. The judge replied that all five rape instructions "read exactly the same . . . [with the] date range on them." He observed that he had "done them like that before" and "d[id not] think [he] c[ould] impose a date on the[m]." The appellant reiterated that not having "a way to distinguish" presented a problem. He proposed "call[ing] them rape one, rape two, rape three . . . so that the jury [would] at least [be] talking about the same charge when . . . deliberat[ing]" and the parties and the court "c[ould also] tell which one [was] which." The judge denied the request.

         Following closing arguments, the court instructed the jury, "In order to return a verdict[, ] each of you must agree upon the verdict." It noted that the jury would receive "a set of verdict forms," including "five verdict forms for rape" "because there are five counts of rape."

         One of the three verdicts returned by the jury read as follows: "We, the jury, find the defendant guilty of rape of a child under the age of thirteen while being eighteen years of age or older on or about June 12[, ] 2017 through June 23[, ] 2017." The jury also convicted the appellant of indecent liberties and aggravated sexual battery. It acquitted him of the remaining four rapes. The judge then said to the jury, "[A]s we told you before, this verdict has to be a unanimous verdict." He polled the jury regarding the verdict, and each juror responded, "Yes," when asked if it was his or her verdict.

         Counsel for the appellant noted his intent to file "a motion to strike the guilty verdict" because "we don't know what rape they convicted him of," but he did not argue that the record failed to prove that the single rape verdict was unanimous. Additionally, although the appellant filed a written motion to set aside the verdict, the motion and the accompanying argument also did ...


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